Dani Garavelli: Blinding injustice of Ken Clarke’s secret courts

Published on 08/04/2012 00:00

WHEN I first heard Kenneth Clarke – that staunch defender of civil liberties – announce plans to hear cases which could affect “national security” in secret courts, I imagined he was worried about the release of information on ongoing operations, the scuppering of which might allow bomb plots to be carried out, with dozens of lives lost.

Somewhat depressingly, it turns out the details he wants hidden from the public in civil cases and inquests relate to alleged wrongdoing by British intelligence officers accused of colluding in the torture of terror suspects. Sparked by the fall-out from the civil case brought by former Guantanamo detainee Binyam Mohamed – settled out of court after a judge ordered the release of CIA documents detailing his treatment – the move was designed to keep embarrassing, as opposed to dangerous, material under wraps.

The Justice Secretary may have waxed lyrical about having to balance the need for transparency with the need for safety, but it was the intelligence officers’ reputations – and by extension those of the British and US governments – rather than their lives that he wanted to protect.

Worse still, the wording of the government’s green paper– which, as it stands, extends the right to a secret hearing to any case involving information which “could damage the public interest” – means the wrongdoing of police officers and soldiers could be covered up too.

So all-encompassing is the current terminology it could be invoked not only to limit embarrassment in the case of Abdel Hakim Belhaj, who is suing the British government after he was allegedly handed over to Colonel Gaddafi’s henchmen on the basis of intelligence provided by MI6, but in cases involving organised crime, friendly fire or police shootings.

As Tory backbencher David Davis has pointed out, were secret courts in force 15 years ago, parts of the 7/7 inquest and the inquiries into the shooting of Brazilian Jean Charles de Menezes might have been heard behind closed doors. It’s not just the press and public who would be excluded from civil cases, under the plans, either, it’s the claimants and their lawyers too. How can justice be done, never mind be seen to be done, if the only people in court are the intelligence services (or other authority) whose actions are being questioned, the judge and government-approved lawyers, known as special advocates, who are forbidden from passing on what they find out to the very persons whose interests they are supposed to represent?

An affront to a British sense of fairness, the green paper has united Right and Left, terror experts and civil liberty groups, law-enforcers and law-breakers in opposition to it. Coming on the back of the suggestion MI5 officers might be allowed to monitor our e-mails and texts, it has raised the spectre of an Orwellian state, where ordinary people’s every move is scrutinised for the merest hint of subversion, while the police, army and government act without fear of repercussion.

With Ed Miliband and Nick Clegg both refusing to back it, it’s clear the green paper will not make it to the Queen’s speech in its current form. Clarke has already agreed to change the wording to make clear the final decision on closed hearings will be made by a judge as opposed to the Home Secretary; and many other U-turns are likely to follow.

But the government’s willingness to compromise on the fine detail should not be seen as in any way reassuring. Despite the joint committee on human rights claiming the government had failed to provide proof for the need to reform, despite Liberty’s Shami Chakrabarti branding it “not secret justice, but no justice”, despite 57 of the 69 special advocates, on whom the system depends, saying it represents “a departure from the foundational principle of natural justice”, David Cameron seems determined to press ahead with most of the measures.

However conciliatory Clarke appears now, the fact remains he tried to push through repressive proposals under the guise of increasing transparency, claiming secret hearings would increase the amount of intelligence revealed. Moreover, he claimed the reforms were being driven by US threats to stop sharing intelligence unless the UK government could guarantee it would not be made public – a claim that not only implied Britain was prepared to mould its justice system to suit US sensitivities but, in the face of CIA denials, seems to have been ill-founded.

Such disingenuous behaviour shows our response to terror is as knee-jerk as it ever was and demonstrates the government has at its heart no unswerving loyalty to the basic tenets of justice in these islands. It should make us wary about what’s happening north of the Border too; though the Scottish Government has said it has no plans to institute similar measures, it is unclear what would happen were similarly sensitive intelligence to be central to a civil case or fatal accident inquiry here. Or what would happen if Scotland became independent. Chiefly, however, it should serve as a reminder that what governments most want to keep secret tends to be the very thing that most urgently needs exposed. If we never get to hear about blunders by the authorities how can lessons be learned? If we never hear about alleged wrongdoing, such as collusion in torture – how can we make it clear they are utterly unacceptable to any civilised country?